138 N.W. 963 | S.D. | 1912
This is an appeal by the defendant from an order of the circuit court of Yankton county remanding the cause back to the justice court for trial. The action was one of forcible entry and detainer, and was instituted by the plaintiff in the justice court. Paragraph 1 of the complaint is as follows: “That heretofore, to-wit, in the year 1911, one E. G. Edgerton leased orally to- the defendant the following described real property situate in the county of Yankton and state of South Dakota, to-wit: * * * -said lease to expire the last day of February, 1912, and the said defendant -entered into the possession of said premises under said -lease and ever since has and still -does retain possession thereof.” The second paragraph of the complaint reads: “That thereafter, and on -the 3d day of February, 1912, said E. G. Edgerton, for value, executed an assignment of all his rights under said oral lease to plaintiff, and at the same time assigned to plaintiff the right to possession of said real estate on and subsequent to the first day -of March, 1912, by executing a warranty deed for said land to plaintiff, which said deed was delivered to plaintiff on or about the first day of March, 1912.” The third paragraph alleges service of notice to quit on defendant more than three days before the commencement of the action, and the filing of said notice with the justice before the commencement of the action. It is then alleged -that defendant 'holds over and refuses to surrender possession to plaintiff. By way of answer the defendant among other things alleged: “mat on or about the 15th day of January, 1911, he hired the premises described in the complaint from E. G. Edgerton, who was then the owner of said premises, by an oral contract made and entered into- by and between the said Edgerton and the defendant, for a term not specified in the said contract nor by the parties thereto, and the defendant then took possession of said premises and has continued in the possession thereof until the present time. That the said premises are farm lands, and not lodgings, -and the said hiring was presumed to be for one year from its commencement; there, being no usage on the subject to the contrary. That- neither the said Edgerton nor the plaintiff nor any other person has ever prior to
The defendant then moved the court to certify the action to the circuit court for the reason that the civil jurisdiction of the justice court extends-“to actions for forcible entry and detainer or detainer only where the title or boundary thereof in no wise comes in -question,” whereas this is' an action of forcible entry and detainer in which the title of the real estate mentioned in the complaint comes in question as. appears further from the pleadings herein, which were referred to for the purposes of the motion. This motion was granted by the justice court and the cause certified to the -circuit court. The plaintiff thereupon moved the circuit court to remand the action for trial by the justice court, for the reason that it appears from the pleadings in said action that the title to or boundary of real property does not in any wise come in -question, and that, therefore, the circuit court has no jurisdiction to try said action. The circuit court granted the motion of the plaintiff to remand, and g'ave judgment accordingly. ¡From this judgment -and order in pursuance therewith the defendant has appealed.
In Burrus v. Funk, 29 Okl. 677, 119 Pac. 976, decided in November, 1911, the learned Supreme Court of Oklahoma in discussing an analogous case to the one at bar says: “The evidence discloses that defendant was in possession under a lease from the former owner which had expired, and was seeking to retain possession by holding over under an alleged new lease which he set up. Assailing plaintiff’s title which was a deed from his landlord, and introduced for the purpose of proving plaintiff’s right of pos
The appellant cites in support of his contention the case of Reay v. Cotter, 29 Cal. 169. That case would support the appellant’s contention if the forcible entry and detainer act of California had been at the time of that decision similar to the forcible entry-and detainer act of this state. The decision, however, seems to be based upon the ground that the provisions of that act limit the right of recovery to the ‘landlord, and therefore the -act could not be extended to the assignee, heir, or other person claiming under the landlord. In that opinion the learned Supreme Court of California says: “Upon inspection of the fourth section of the act (Stat. 1863, p. 653), it will be found that this remedy is
“Sec. 43. Any justice of the peace within his proper comity shall have power to inquire, in the manner hereinafter specified, of all cases of forcible entry and detainer, or detainer only, of real property.
“Sec. 44. This action is maintainable: * * * 4. Where a lessee in person or by his sub-tenants holds over after the termination of his lease or expiration of his term, or fails to pay his rent for three days after the same shall be due.”
It will be observed that there is no limitation in this statute as to the party who may maintain the action, and it therefore seems a proper construction of that -subdivision that the action may be maintained, not only by the lessor, but his assignee or grantee, as such was evidently the intention of the Legislature in adopting the provision. The object of these sections'evidently is to provide a -speedy and -summary remedy for the landlord or his grantee or assignee to -recover possession of the premises instead of resorting to the expensive -and dilatory proceedings of an action in ejectment, or, more propertly under our Code, an action to recover possession of the' property.
Much reliance is also placed by the appellant upon the case of Murry v. Burris et al., decided by the -.Supreme Court of Dakota Territory and- reported in 6 Dak. 170, 42 N. W. 25. But, after a careful examination of the able and learned opinion of the late territorial court written by Chief Justice Tripp, we are of the opinion that the case does not sustain the appellant’s contention. It appears from the statement of facts in that case that the plaintiff alleged in his complaint an unlawful entry by the defendants by force and volatice, and an unlawful entry by the defendants by fraud 'and stealth with unlawful detention. The defendants in their answer denied generally the allegations of each count, and pleaded, in -substance, that the -defendants were lawfully possessed
Every tenant while complying with the terms of his lease has an estate.in the premises leased but no title, to the .property.
AVe are clearly of the opinion, therefore, that the circuit court was right in remanding the action to the justice court, and the order appealed from is affirmed. ' ''